The People (Director of Public Prosecutions) v D.J.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 15 June 2017 |
| Neutral Citation | [2017] IECA 181 |
| Docket Number | [C.A. No. 131 of 2016],No. 131/2016 |
| Court | Court of Appeal (Ireland) |
| Date | 15 June 2017 |
[2017] IECA 181
THE COURT OF APPEAL
Birmingham J.
Birmingham J.
Edwards J.
Hedigan J.
No. 131/2016
IN THE MATTER OF SECTION 34 OF THE CRIMINAL JUSTICE ACT 1967 AS AMENDED BY SECTION 21 OF THE CRIMINAL JUSTICE ACT 2006
Exclusion of evidence – Sexual assault – Without prejudice – Appellant seeking determination of a question of law– Whether trial judge was correct in excluding evidence
Facts: The respondent, on 20th February, 2011, at the Radisson Hotel, Farnham, Cavan, sexually assaulted the complainant. The respondent was charged with sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by s. 37 of the Sexual Offences Act 2001. The respondent stood trial on 25th November, 2015 and subsequent days before the Circuit Court in Cavan. The Court of Appeal was requested to determine the following question of law: “Was the learned trial judge correct in excluding any evidence that tended to show the commission of offences which had not been specifically charged on the indictment herein notwithstanding that each of the offences alleged was a sexual assault and occurred at the time that the offence charged on the indictment had occurred?” This matter was brought before the Court by the appellant, the DPP, pursuant to s. 34 of the Criminal Justice Act 1967 as amended by s. 21 of the Criminal Justice Act 2006. In effect, it was a without prejudice appeal.
Held by the Court that the issue was whether the judge was correct in excluding evidence where the activity described amounted to an offence more serious than that actually charged. Having regard to the decision in The People v Rock [1994] 1 ILRM 66 and the decision in The State (Foley) v Carroll [1980] IR 150, the Court was firmly of the view that the complainant should not have been prevented from giving a full account of what, according to her, occurred in the bedroom.
The Court held that it would answer the question posed by saying that the trial judge was not correct in excluding the evidence in question.
Appeal allowed.
This matter is brought before the Court by the Director of Public Prosecutions pursuant to s. 34 of the Criminal Justice Act, 1967 as amended by s. 21 of the Criminal Justice Act, 2006. In effect, it is a without prejudice appeal.
This Court is requested to determine the following question of law:
‘Was the learned trial judge correct in excluding any evidence that tended to show the commission of offences which had not been specifically charged on the indictment herein notwithstanding that each of the offences alleged was a sexual assault and occurred at the time that the offence charged on the indictment had occurred?’
The background to this issue coming before the Court is to be found in the fact that the respondent, D.J. stood trial on 25th November, 2015 and subsequent days before the Circuit Court in Cavan. The indictment on foot of which he was arraigned was on the following terms:—
‘D.J. is charged with the following offence:
Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by s. 37 of the Sexual Offences Act 2001.
D.J., a male person, on 20th February, 2011 at the Radisson Hotel, Farnham, Cavan, in the County of Cavan sexually assaulted M.J. a female person.’ [The names of the accused and the complainant have been anonymised]
The trial was concerned with events alleged to have occurred in a hotel bedroom during the early hours of 20th February, 2011. The bedroom in question was one in which the complainant, her husband, S.J. and their baby were staying. S.J. had a birthday around this time and it was decided that he and his wife would travel to Cavan and meet with two brothers of his and their wives for a meal to mark the occasion. D.J. is a brother of S.J. and so the brother-in-law of the complainant M.J.
In fact, the dinner was confined to S.J., M.J., D.J. and his wife as the other couple who had been intended to participate withdrew at a late stage. S.J. and M.J. had arranged for a babysitter to be present in the hotel bedroom while they dined downstairs. After the dinner, at which a significant amount of wine was consumed Ms. M.J. went to the bedroom with a view to relieving the babysitter. D.J. accompanied her there. According to M.J., D.J. initially fell asleep for a period on the bed. He then woke and proceeded to sexually assault her in various ways over a period of 40 to 45 minutes.
There was no immediate complaint and indeed Ms. M.J.'s statement to Gardaí was taken on 24th February, 2013, just over 2 years later. A file was submitted to the DPP in the usual way and it appears that when the matter was first considered within the office of the Director of Public Prosecutions that the decision was not to prosecute, however, that decision was reviewed and a direction issued that Mr. D.J. should be charged with a single count of sexual assault. The trial was listed for 25th November, 2015.
After the case was opened to the jury by prosecution counsel in a brief manner, counsel for...
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